5.  The applicant was born in 1940 and lives in Warsaw.
6.  The case concerns criminal proceedings against former police officers (Milicja Obywatelska) who faced charges in connection with the assassination, in May 1983, of Grzegorz Przemyk. The victim’s mother, Barbara Sadowska, was at that time a well-known opposition activist. The applicant is the victim’s father.
7.  Criminal proceedings were instituted in 1983 against the police officers, charging them with beating the victim to death. In 1984 I.K. and other individuals were acquitted.
8.  On 29 June 1990 the Warsaw Regional Court re-opened the trial and quashed the acquittal, finding that the original proceedings had been seriously defective, essentially because of the authorities’ tampering with the evidence, and that the assessment of the evidence by the court had been fundamentally flawed. The court ordered the prosecution to carry out the investigation again.
9.  On 29 June 1991 an indictment against I.K. and two other individuals on charges of battery, punishable under Article 153 § 1 of the 1969 Criminal Code, was brought before the Warsaw Regional Court. On 4 November 1991 that court remitted the case back to the prosecuting authorities, finding that there had been serious deficiencies in the investigation.
10.  On 25 March 1993 the prosecution lodged an indictment against I.K. and two others, former police officers A.D. and K.O., with the Warsaw Regional Court, charging them with the offence punishable under Article 153 § 1 of the 1969 Criminal Code. The applicant had the status of auxiliary prosecutor in the proceedings (oskarzyciel posiłkowy).
The case remained dormant until 22 May 1995, when the first hearing in the case was held.
11.  By a judgment of 4 April 1997 the Warsaw Regional Court acquitted I.K. It convicted A.D. as charged and sentenced him to four years’ imprisonment. It further reduced the sentence to two years as a result of the Amnesty Act 1990. K.O. was found guilty of destroying evidence in 1990.
All the parties, including the applicant, appealed against that judgment.
12.  On 22 May 1998 the Warsaw Court of Appeal quashed the judgment insofar as it concerned I.K. and remitted the case. At the same time, it acquitted K.O. and upheld, in essence, the conviction of A.D.
The applicant lodged a cassation appeal against this judgment with the Supreme Court in so far as it concerned K.O. Lawyers representing A.D. also appealed against the judgment.
13.  On 22 September 1999 the Supreme Court dismissed both appeals.
14.  The trial against I.K. started anew. The first hearing was scheduled for 18 April 2000. On 19 June 2000 the Warsaw Regional Court acquitted I.K.
The applicant appealed.
15.  The acquittal was upheld by the Warsaw Court of Appeal on 17 January 2001. The court held that the offence with which I.K. had been charged had become prescribed on 1 January 2000, when the ten‑year prescription period provided for by Article 9 of the Transitional Provisions of the 1967 Criminal Code (see paragraph 32 below) had elapsed. It was of the view that that period could not be prolonged by the further five years provided for by Article 102 of the Criminal Code (see paragraph 30 below) because the prescription period had started to run in 1983 when the proceedings had been instituted for the first time. The provision of Article 9 of the Transitional Provisions to the Criminal Code (see paragraph 32 below) had no effect on the running of that period.
The applicant and Prosecutor General appealed against that judgment. They submitted that the judgment had been in breach of substantive law in so far as the court had found that criminal liability in respect of the offence had become prescribed. The Prosecutor General argued that the crime had to be characterised as a communist crime which was not subject to prescription at all.
16.  On 12 September 2001 the Supreme Court quashed the judgment of 17 January 2001 and remitted the case. The court held that the Court of Appeal had erred in the interpretation of the provisions of the Code concerning the prescription of criminal liability. In particular, it had been wrong in its interpretation of Article 102 of the Criminal Code and in holding that the prescription period had started to run in 1983. Such an interpretation would make it impossible to pursue proceedings in respect of persons who, acting as agents of the State, had committed crimes before 1 January 1990 but had subsequently been acquitted before that date because the authorities had found it politically expedient to find them not guilty. This interpretation would defeat the purpose of the provisions themselves, which were designed to bring to justice perpetrators of such crimes by way of extending the relevant prescription periods.
17.  On 29 January 2002 the Warsaw Court of Appeal, having reconsidered the case, quashed the judgment of the Warsaw Regional Court of 19 June 2000 acquitting I.K. It was of the view that the first-instance court had seriously erred in its assessment of the evidence and, as a result, had failed to establish the facts of the case properly. It remitted the case. It noted, in passing, that it shared the view of the Supreme Court as to the prescription period applicable to the offence concerned expressed in its judgment of 12 September 2001.
18.  The trial started anew. The first hearing was scheduled for 5 June 2003. Fourteen hearings were held from that date until 19 January 2004. On the latter date the Warsaw Regional Court acquitted I.K. The prosecutor and the applicant appealed.
19.  By a judgment of 16 June 2004 the Warsaw Court of Appeal allowed both appeals, quashed the acquittal and remitted the case. It was of the view that the first‑instance court had failed to take certain evidence crucial for the proper assessment of the case. In particular, it had failed to organise a confrontation between the accused and some of the witnesses, police officers present at the scene of the offence, and the principal witness, C.F., the victim’s friend who had been arrested together with him in May 1983, in the manner prescribed by the Code of Criminal Procedure. The applicant had been right in submitting that the facts of the case had not been properly established.
The court further observed that the first-instance court had failed to assess the evidence in a logical and comprehensive manner. As a result, it had wrongly had recourse to the principle of in dubio pro reo, which was only to be applied where there were insurmountable difficulties in establishing the facts.
20.  The trial started anew on 29 November 2004. It lasted four years. Twenty-seven hearings were held. Four hearings were adjourned for various reasons.
21.  On 27 May 2008 the Warsaw Regional Court found I.K. guilty as charged and sentenced him to eight years’ imprisonment. However, it reduced the sentence to four years’ imprisonment on the basis of the Amnesty Act 1989.
22.  The judgment was appealed against by the defence.
23.  On 14 December 2008 the Warsaw Court of Appeal requested the Supreme Court to answer a legal question (pytanie prawne) as to whether the offence of battery, punishable under Article 157 § 1 of the Criminal Code, had become time‑barred. It observed, inter alia, that Article 105 § 2 of the Criminal Code provided that offences of wilfully causing serious bodily harm committed before 1 January 1990 by persons acting as agents of the communist State were not subject to prescription. However, it was not clear whether the offence of battery with which I.K. had been charged and which had caused serious bodily harm was covered by this provision.
24.  By a decision of 23 September 2009 the Supreme Court refused to give a reply to that question, finding that it was not necessary for the determination of the case. It remitted the case to the Court of Appeal.
25.  On 14 December 2009 the Court of Appeal quashed the first‑instance judgment and discontinued the proceedings, having found that the offence had become time-barred on 1 January 2005. It held that the offence of battery was not covered by the provisions of Article 105 § 1 of the Criminal Code. Only intentional offences expressly listed in that provision by their statutory names were not subject to prescription.
26.  On 2 February 2010 this judgment was challenged by way of an appeal on points of law lodged by the Prosecutor General (Prokurator Generalny), i.e. by the Minister of Justice at the material time. It was submitted that a flagrant error of interpretation of substantive law had been committed by the appellate court, in that it had accepted that an intentional offence of battery committed by a State agent in connection with and during the exercise of public functions prior to 1 January 1990 could become time‑barred.
27.  By a judgment of 28 July 2010 the Supreme Court dismissed the cassation appeal. It held that the Court of Appeal’s interpretation of the substantive law as to whether the offence of battery could become time‑barred was correct. The relevant provision listed offences which were not subject to prescription by their names used in the Criminal Code, not by their results. Hence, even though battery could result in serious bodily harm, the offence of battery was not covered by this provision, while the offence of “causing serious bodily harm” was.
The court further observed that after the proceedings against I.K. had started to be conducted by the bodies of the democratic State after 1989, they had failed to sustain a conviction on the criminal charges during a period of over twenty years. This failure had mainly resulted from various steps taken immediately after the events by the communist authorities in order to make it impossible to establish the facts and the perpetrators of the crime and to thwart attempts to determine their criminal liability. The inability to determine I.K.’s liability in the case had to be regarded, having regard both to the length of the proceedings and to their final outcome, as “a failure of the justice system” (“porażka wymiaru sprawiedliwości”). The written grounds for this judgment were served on the applicant’s lawyer on 7 October 2010.
II.  PARLIAMENT’S RESOLUTIONS CONCERNING THE CASE
28.  On 16 May 2013 the upper house of Parliament (Senat) adopted a resolution to commemorate the applicant’s son as a victim of martial law rule (uchwała Sejmu Rzeczypospolitej Polskiej w sprawie uczczenia pamięci Grzegorza Przemyka – ofiary stanu wojennego). It read, inter alia:
“Thirty years ago, on 12 May 1983, officers of the then Militia arrested in Warsaw Old Town a high school graduate, young poet Grzegorz Przemyk. He was subsequently savagely beaten up by the militia officers and by agents of the riot-control police [known at that time as ZOMO] at the nearest police station at Jezuicka Street. On 14 May 1983 he died in a hospital. Subsequently, at the orders of highest State and [communist] party authorities, evidence was fabricated with a view to assigning the responsibility for his death to medics of the emergency services, while evidence pointing to the guilt of the militia officers was suppressed. As a result, the medics were arrested and Grzegorz Przemyk’s family and friends suffered various forms of harassment.
The perpetrators of that murder evaded responsibility. Even when the country had become independent, it proved impossible to adjudicate on the case and impose sentences on them.
Parliament condemns the perpetrators and instigators of that political murder.”
29.  On 22 May 2013 the lower house of Parliament of Poland (Sejm) adopted an identical resolution.